Employers face tough call on vaccine exemptionsPosted On: Nov. 16, 2021 7:00 AM CST
Contending that a religious accommodation request not to have a COVID-19 vaccination poses an undue hardship may be the most effective way for companies to deal with the deluge of such employee requests, experts say.
Such a move would be preferable to getting into the quicksand of closely exploring whether workers have “sincerely held” religious beliefs that would permit them to be exempted from vaccinations, as required by Title VII of the Civil Rights Act of 1964, they say.
Last month, the U.S. Equal Employment Opportunity Commission, which oversees Title VII’s regulation, updated its guidance on the issue of religious accommodation with respect to COVID-19 vaccine mandates, which many employers are introducing. The agency advised that while employers should assume a request is valid, they can make “a limited factual inquiry” and seek additional supporting information before granting it.
Some employees contend the vaccine conflicts with the tenets of their organized faith or with their own individual beliefs. In some cases, for instance, employees assert the development of the vaccine involved the use of fetal cell lines, which violates their religious belief.
Employers, however, are not obligated under Title VII to comply with accommodation requests if they can establish it would cause them undue hardship.
Possible accommodations include working from home, wearing a mask, social distancing and frequent testing.
A factor expected to influence accommodation requests is the ultimate fate of the emergency temporary standard issued by the Occupational Safety and Health Administration earlier this month, which requires employers with 100 or more employees to either mandate vaccinations for their workforce or enforce weekly testing. The standard faces numerous court challenges.
Before the pandemic, people typically sought religious exemption for matters such as not working on their sabbath or issues related to religious garb or grooming, said Richard B. Cohen, a partner with FisherBroyles LLP in New York.
The difference now is “people are scurrying around … looking for any way to not get” the vaccine if they oppose it, he said. Experts note that documentation for employees to submit with their accommodation requests is available on the web.
Abuse of the accommodation “does an injustice to those who truly have sincerely held beliefs,” said Barry A. Hartstein, a shareholder with Littler Mendelson P.C. in Chicago.
Mr. Hartstein said, “What we have seen is, literally, employees who are essentially buying letters off the internet” that assert they have religious objections to vaccine mandates.
The situation has left employers grappling with balancing employees’ health and safety and their sincerely held religious beliefs, said Michelle E. Phillips, a principal with Jackson Lewis P.C. in White Plains, New York.
Experts say religious accommodation requests vary based on industry and region. “We have some clients who have just been deluged with the request for religious accommodation, and then we have others who might get one or two,” said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina.
Ms. Shea said such requests are probably more likely to be made in North Carolina, for example, where there is more anti-vax sentiment generally and religion is more widely practiced, than in California.
Paul E. Starkman, a member of law firm Clark Hill PLC in Chicago, said in one case an employer with 360 employees got more than 60 requests for religious accommodations.
Allyson K. Thompson, a partner with Kaufman Dolowich Voluck LLP in Los Angeles said, “There has been a deluge of religious accommodation requests because this is the easier request to make,” as medical or disability accommodations require documentation.
“It’s a problem because of the looseness” of what qualifies for religion under courts’ and the EEOC’s interpretations, Mr. Starkman said.
“Even if, yesterday, someone doesn’t claim they have religious objections to being vaccinated, they can, overnight, have a conversion and make such a claim,” he said.
“It might be an employee’s own, made-up, completely nonsensical religion, but if the employee’s genuine in their stated belief, then the employer has to engage in an accommodation dialogue,” said Randi Winter, a partner with Spencer Fane LLP in Minneapolis.
The issue of religious beliefs is “a very difficult area for an employer to wade into,” said Gerald Maatman, a partner with Seyfarth Shaw LLP in Chicago, and is harder than making a decision on the basis of whether the accommodation would place an undue hardship on its business.
If there is a substantial number of workers seeking accommodation, “the employer may well have a basis for assuring a religious accommodation may be an undue hardship,” Mr. Starkman said.
Ms. Thompson said, “Ultimately, the employer needs to be able to document that they have looked at the employee’s request, and considered factors that affect the business,” including the cost and resources available for accommodation.
Company procedures should be consistent and tailored to the business. “Don’t just grab something from the internet,” she said. “Make sure it makes sense for the organization.”
Litigation over the issue will depend on how employers respond, said Sara H. Jodka, a member of Dickinson Wright LLP in Columbus, Ohio. She pointed to a lawsuit filed by United Airlines Inc. employees who objected to being placed on unpaid leave after they requested religious or medical accommodations.
The U.S. District Court in Fort Worth, Texas, denied their motion for a preliminary injunction against the airline last week.
Companies that are sued can call on their employment practice liability insurance to provide a defense, Mr. Maatman said.